United States v. Apfelbaum

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 77-317)

Before Adams, Weis and Garth, Circuit Judges.

Author: Garth

Opinion OF THE COURT

This appeal calls upon us to examine the contours of the permissible use by the Government of immunized grand jury testimony where that testimony does not constitute the Corpus delicti or core of a defendant's false swearing indictment. In resolving this issue, we recognize the tension created by the conflicting interests between the power of a grand jury to compel testimony and a witness's privilege against self-incrimination. Following the teaching of Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972), and the precepts established in this court's precedents, See United States v. Frumento, 552 F.2d 534, 542-43 (3d Cir. 1977) (en banc); United States v. Hockenberry, 474 F.2d 247 (3d Cir. 1973), we hold that grand jury testimony which is compelled under a grant of immunity may be utilized only as the Corpus delicti of an indictment for perjury or for false swearing. See 18 U.S.C. § 6002.

I.

On December 13, 1976 and January 3, 1977, Stanley Apfelbaum, then an administrative assistant to the District Attorney in Philadelphia, appeared as an immunized witness before a federal grand jury.*fn1 The grand jury was investigating criminal activities (including racketeering and extortion) alleged to be involved in the operation of a Chestnut Hill automobile dealership in Philadelphia.

In response to questioning before the grand jury, Apfelbaum made two series of statements which served as the basis for his subsequent false swearing indictment and conviction. In his December 13th grand jury testimony He denied that he had tried to locate one Harry Brown in Fort Lauderdale, Florida during the month of December 1975.*fn2 Then, on December 13, 1976 and again on January 3, 1977, Apfelbaum testified before the grand jury that He did not recall telling F.B.I. agents that he had loaned $10,000 to Brown. The grand jury which heard these two statements returned an indictment against Apfelbaum which charged him with two counts of wilfully and knowingly making false material declarations before a grand jury in violation of 18 U.S.C. § 1623.*fn3

With respect to Apfelbaum's "locating Brown," paragraph 5 of Count One of the indictment recited Apfelbaum's grand jury testimony. That testimony and the charging clause of the indictment follow:

Q. It's my understanding you went down to Florida in December of 1975, approximately the 5th of December.

A. That's right. That's what I said before.

Q. Now, at that time did you see Mr. Brown?

A. No. I told you I went down there for a fishing trip, not fishing trip, to look at a boat for Dr. Slawek and then go to Puerto Rico.

Q. And you only stayed in Florida about three days?

A. About three or four days, something like that. I'm not sure exactly. Don't hold me to three or four. It was around that. I spent a total time of about two weeks between the two, including flight time and so on.

Q. When you were down there, did you call up Harry Brown to talk to him?

A. No.

Q. Did you know he was down there?

A. I heard he was down there. Somebody had said he was down there.

Q. Did you do anything to attempt to contact Mr. Brown when you were down there?

A. Not that I remember. I don't think I knew where he was at.

Q. Well, how did you find out where he was at eventually?

A. Somebody had told me about it and I don't know who, but they told me he was down in Florida.

Q. Okay. By this time, had the papers reported that Harry Brown was missing?

A. I don't believe so. I don't know. I'm not sure. I'm trying to recollect. I don't know whether they said he was missing or not.

Q. So, in December, when you were down there, you're sure you didn't try to contact Harry Brown; is that correct?

A. Yeah, Yeah.

Q. Did you try to locate Harry Brown when you were down there?

A. No.

Q. You're sure?

A. Positive.

Q. Now, did you tell anyone that you were trying to locate Harry ...

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